Hyperion Records Ltd v Sawkins
Reference:  EWCA Civ 565;  1 WLR 3281;  EMLR 688
Court: Court of Appeal (Civil Division)
Judge: Mummery, Mance and Jacob LJJ
Date of judgment: 19 May 2005
Summary: Copyright - Musical works - Performing editions of non-copyright works - Subsistence of copyright - "Original" - "Musical" - s.3 CDPA 1988 - Infringement of copyright - Moral rights - Right to be identified as author - s.77 CDPA 1988
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Instructing Solicitors: Wiggin & Co for the Appellant; Peter Carter-Ruck & Partners for the Respondent
Dr Sawkin (‘S’) had researched the works of the late Lalande, the principal composer at the courts of Louis XIV and Louis XV, and had created new performing editions of four of his works. In total this work took S 300 hours and involved him making 3000 editorial interventions to the works. In October 2002, Hyperion Records (H) produced a CD featuring performances of the four performing editions. H disputed that S was entitled to copyright in these editions, on the basis that an editor should not obtain copyright in non-copyright works. It did however pay him a ‘hire fee’ for provision of the scores for the recording. S brought an action for infringement of copyright and of his moral rights. Patten J held that there had been infringement in 3 of the 4 claimed instances, and that H had infringed S’s moral rights by not identifying him as the author of the 3 editions in accordance with s.77 CDPA 1988. H appealed.
(1) Whether the performing editions that S had created were “original” and “musical” within the meaning of an “original musical work” for the purposes of the CDPA 1988; (2) If they were, whether H had infringed S’s copyright; (3) Whether S had copied one of the performing editions from a previous existing version; (4) Whether H had infringed S’s moral rights by failing to identify him as author.
Dismissing the appeal. The effort, skill and time that S spent in making the performing editions was sufficient to make them “original”, even though they were based on the scores of musical works composed by Lalande. They were also “musical” within the meaning of the CDPA 1988. H’s submissions on this point were, in essence, that S’s works should not be considered “musical” as they did not contribute new music in the form of the notes in the score. This was an unduly narrow view. The entirety of a work must be assessed in determining subsistence of copyright. H had ignored the fact that the totality of the sounds on the CD were affected, or potentially affected, by the information inserted into the performing editions by S, and could not have been created without S’s scores. Copyright subsisted in S’s performing editions, and H had infringed that copyright. H’s claim that S had copied one edition was rejected. H had infringed S’s moral rights by failing to identify him as author.
An important case for the music industry, and one that cuts to the core of the concept of “originality” in copyright. It was common ground that Dr Sawkins had made no new music as such – he had merely worked on the old Lalande pieces in order to make them playable. But this was held to be sufficient to create an original copyright work as it had required a high degree of skill and labour; it was not merely servile copying. Precisely where the borderline between the two lies is sure to be the subject of future cases. The case confirms that the dictum of Lord Oliver in Interlego – to the effect that no amount of skill and effort can make a copy an original work – is to be confined to the the subject matter of that case (namely technical drawings).